Appeals Court to Hear Arguments over EPA Carbon Rules This Week

EPA’s endangerment finding and tailpipe, tailoring and timing rules to face legal challenges in a single case consolidated from dozens of lawsuits.

The John E. Amos coal-fired power plant in West Virginia, owned and operated by Appalachian Power, a subsidiary of American Electric Power (AEP)/Credit: fotopedia

WASHINGTON—Opponents intent on blocking EPA's "endangerment finding" and the agency's other efforts to regulate emissions of heat-trapping gases via the Clean Air Act will have their two days in court this week.

A three-judge panel with the U.S. Court of Appeals is slated to hear oral arguments on the legal challenges Tuesday and Wednesday in the nation's capital.

In addition to the endangerment finding, the court will be reviewing a trio of other regulations—abbreviated as the "tailpipe," "tailoring" and "timing" rules. Combined, they are the bedrock of the Environmental Protection Agency's attempts to regulate emissions of carbon dioxide and other greenhouse gases from vehicles and big industrial sources.

All four rules represent the agency's response to Massachusetts v. EPA. In that landmark 2007 decision, the Supreme Court gave EPA authority over carbon pollution. The high court justices also made it clear that agency officials could not shirk that authority unless they could provide a scientific basis for refusing to act.

The appeals court's rulings, expected to be issued this summer, are significant because they have the potential to halt, delay, modify or increase the scope of EPA's regulation of carbon under the Clean Air Act.

To streamline the two-day exercise, dozens of lawsuits by the petitioners have been combined under the name Coalition for Responsible Regulation v. EPA.

The list of petitioners includes coal-burning utilities, coal companies and affiliated trade associations, oil companies, trade groups for steel, cement and homebuilders, agribusiness interests, organizations that deny the science of climate change and Republican politicians connected with the Tea Party.

Petitioners will argue that the EPA is in gross violation of the Clean Air Act, that the proposed regulations will have no detectable effect on global temperature or carbon dioxide concentrations, and that they impose "extraordinary costs, burdens and other adverse consequences."

But attorneys with the Natural Resources Defense Council and other green groups say the petitioners' claims are without merit. NRDC has joined with other environmental organizations, as well as state and local governments, that have come to the defense of EPA in this case.

"The challengers have come gunning for EPA, but they are just shooting with blanks," said David Doniger, the policy director for the Climate and Clean Air Program at the Natural Resources Defense Council. "As lawsuits themselves, these cases aren't much of a threat."

Holland & Hart LLP, a western law firm representing the Coalition for Responsible Regulation, will be arguing that EPA officials didn't do their homework.

"The basic thrust of our case is to ask the court to require EPA to accurately and fully weigh and balance the uncertainties and certainties of climate change before imposing regulations that are going to carry an incredible cost without a measurable gain," Denver-based Holland & Hart attorney Paul Phillips told InsideClimate News.

"There's a compelling amount of science and facts out there that suggest man-made climate change is not certain," Phillips said. "EPA needs to accurately and honestly those certainties as well as the uncertainties."

But Doniger said the court won't buy into that claim.

"No alternative theory—from sunspots, to clouds, to cosmic rays—has gone uninvestigated," he said about the EPA's due diligence. "And every wild charge of scientific fraud, aka Climategate, has been examined and refuted. The challengers' briefs throw some of this spaghetti at the wall once more, but none of it will stick."

Four Rules Under Fire

President Obama announced his first round of clean-vehicle initiatives in May 2009. It covers model years 2012-2016 and establishes combined carbon pollution and fuel economy standards based on the Clean Air Act and the 2007 Energy Independence and Security Act. Two sets of subsequent car standards expand on that starting point.

Environmental advocates note that anti-tailpipe rule petitioners are not directly challenging the vehicle emission standards and that auto manufacturers are not even involved in the lawsuits. Instead, petitioners are challenging the first set of clean car standards by claiming that the Obama administration should have relied on fuel economy standards alone instead of setting Clean Air Act standards.

Power plants, refineries, manufacturers and other petitioners also have a beef with the timing and tailoring rules, which force new and expanding large emitters to obtain pre-construction permits indicating that they will rein in carbon pollution by deploying what's known as the "best available control technology."

One, they say EPA moved too quickly by ignoring the usual three-year window on new regulations, and two, they resent the way the agency calibrated the rule. The tailoring portion, which took effect in January 2011, is phased in over several years. Currently, it applies to new sources emitting at least 100,000 tons of carbon dioxide annually and sources where expansion will cause carbon emissions to rise by 75,000 tons or more per year.

Jeff Holmstead is a former assistant administrator of air and radiation at EPA. He is now an attorney with the Washington law office of Bracewell & Giuliani, which isn't arguing the case. He strongly doubts petitioners will knock down the endangerment finding but says they could score some victories on the other three rules.

"I'm following it closely," Holmstead said in an interview. "This case is unlikely to be a complete win or a complete loss for either side."

Note: The Environmental Defense Fund has posted the supporting and opposing legal briefs connected with the lawsuits. Access them here.